(1) This appeal is against the judgment of the High Court, Sekondi dated 21^st day of June, 2017. In the said judgment, the court held that it preferred the evidence of the Plaintiff that he took some loans from his bankers and awarded him Gh₡500,000.00 with interest at the rate of 35% per annum from January 2015 till date of final payment. The Court also awarded the Plaintiff costs of Gh₡12,000.00.

(2) The Defendant, dissatisfied with the whole judgment by its Notice of Appeal filed on 21^st June, 2017 sought by way of relief to have the said judgment reversed based on the omnibus ground that the judgment is against the weight of evidence adduced at the trial. The Defendant in its Amended Notice of appeal, added seven more grounds to its initial grounds of appeal.

(3) The Defendant also dissatisfied with the said judgment filed a Notice of Cross-Appeal on two main grounds and reserved the right to file additional ground(s).

(4) While the appeal was pending, the Plaintiff died and was substituted by one Nana Asare Bediako who claims to be the head of family of the deceased.

(5) The Defendant in its written submission has raised an objection to the capacity of the said Nana Asare Bediako which we deem pertinent to consider before proceeding to determine the appeal on its merit.

(6) In arguing the legal point raised, counsel for the Defendant argued that Order 4 Rule 14(1) of the High Court (Civil Procedure) Rules, 2004 (C.I.47) entitles the High Court to “appoint a person to represent the estate of a deceased” for the purpose of the proceedings. Counsel argued further that in the instance case, there is no evidence from the ex-parte application on the basis of which the substitution was done by the High Court or that the deceased Plaintiff did not have a personal representative, a customary successor nor head of family. Further, counsel argued that the proper person to invoke the Court’s jurisdiction to make the said order is expressly provided by the rule and that is “a party to the proceedings”.

(7) Counsel for the Defendant contended that Nana Asare Bediako who the High Court substituted wrongly was not a party to the proceedings and could not, therefore apply for substitution of himself much less be granted an order of substitution under Order 4 Rule 14(1) of C.I.47. Counsel contended that it is a party in the action and not the person who seeks to be substituted that can bring such an application as underlined by Order 4 Rule 14(3) of C.I.47. Counsel contended further that the court, before making the order under this rule, may require “notice” of the application to be given to any of the persons who has an interest in the estate. Counsel continued to argue that the rule was never intended that a person such as Nana Asare Bediako who claims to be the deceased Plaintiff’s family member can apply to be substituted and then give notice of the application to himself.

(8) Counsel therefore submitted that Nana Asare Bediako was not a party at the time the order for substitution was made and the High Court had no jurisdiction to substitute him for the deceased Plaintiff for the purpose of these proceedings. Counsel submitted further that the proper person to sue or apply to have himself substituted in a pending suit is a personal representative.

(9) Counsel for the Defendant also referred to Section 1 of the Administration of Estate Act, 1961 (Act 63) which provides that the movable and immovable property of the deceased person shall devolve on the personal representative of the deceased person from the date of death. Counsel quoted the definition of personal representative as in Section 108 of Act 63 and cited the Supreme Court case of AKRONG AND ANOTHER VS. BULLEY [1965] GLR 469 where a Plaintiff who issued a writ prior to her obtaining letters of administration was held to lack capacity to sue at the time she issued her writ and therefore the writ was held to be a nullity and so were the proceedings and the judgment founded on it.

Counsel finally submitted that under the circumstances, the matter be stayed until the proper person is duly appointed and substituted in the Plaintiff’s place.

(10) In response, counsel for the Plaintiff/Respondent (hereinafter referred to as “Plaintiff”) was of the view that the argument of counsel for the Defendant that Nana Asare Bediako is not a personal representative of the deceased and therefore cannot be substituted for the deceased in a “personal action such as this” is totally misconceived and so is the reliance of counsel for the Defendant on the Administration of Estate Act, 1961 (Act 63) Section 1 thereof and so also is the case of AKRONG AND ANOTHER VRS. BULLEY (supra) which was cited by counsel for the Defendant. His reasons were that Nana Asare Bediako the substitute Plaintiff has not commenced any action on behalf of the deceased, but he has only stepped in the shoes of the deceased Plaintiff upon his demise for purposes of the proceedings. He contended that the High Court has jurisdiction under Order 4 Rule 14(1) of C.I.47 to “……………appoint a person to represent” the estate of a deceased “for the purpose of the proceedings”. Counsel for the Respondent contended further that there are very good reasons for the provision by the law maker of Order 4 Rule 14(1) in C.I.47. He contended further that without this provision, it would mean that upon the death of a party in the course of the trial, and if the funeral is not held or a personal representative appointed for a year or two or even more, the suit will have to stall. Counsel added that the application for substitution was not brought under Order 4 Rule 14(1) as contended by counsel for the Defendant but Order 4 Rule 6(3) of the C.I.47.

(11) Respondent Counsel has invited this Court to dismiss the Appellant’s objection challenging the capacity of the substitute Plaintiff on the ground that the Notice of Appeal which sets out the parameters for the exercise of the Court’s Appellate jurisdiction, does not contain any ground as regards the capacity of the substitute Plaintiff.

(12) It is well-settled by a plethora of decided cases that capacity or locus standi is a point of law which can be raised at any time or stage of a trial. It can also be raised even after judgment and on appeal. An issue raised in respect of capacity or locus standi is like a plea as to jurisdiction which goes to the foundation or root of the action and which if it is sustained by the court brings the action to an end.

See; CHAPMAN VRS. OCLOO AND KPERHANU [1957] WALR 84; MANU VRS. NSIAH [2005-2006] SC GLR 25; ASANTE APPIAH VRS. AMPONSAH alias MANSA [2009] SC GLR 90; REPUBLIC VRS. HIGH COURT, ACCRA, EX-PARTE ARYEETEY (ANKRA INTERESTED PARTY [2003] SC GLR 398.

(13) In FOSUA & ADU-POKU VS. ADU-POKU [2009] SC GLR 310, Head note 6, the Supreme Court held that;

“Capacity to sue was a matter of law and could be raised by a party at any stage of the proceedings, even on appeal. it could be raised by the court suo motu”.

Some of the judges in that case expressed their views on the issue of capacity thus: Per Ansah JSC “the Supreme Court considers the question of capacity in initiating proceedings as very important and fundamental and can have a catastrophic effect on the fortunes of a case”.

Per Dotse JSC “want of capacity is a point of law which if raised, goes to the root of the action”.

(14) It is thus not only instructive but trite learning that at whatever stage of the proceedings when the capacity of a Plaintiff is put in issues, it must first be established that indeed, he is clothed with the legal indices that entitles him access to the court.

(15) We agree with counsel for the Plaintiff that the objection to the capacity of the substitute Plaintiff was not raised in the Notice of Appeal as a ground to be canvassed. However in our view, this court is not precluded from considering this point of law raised in this manner. Under Rule 8(9) of the Court of Appeal Rules, 1997 (C.I.19), the Court of Appeal is empowered in deciding the appeal “not be confined to the grounds set out by the Appellant but the Court shall not rest its decision on a ground not set out by the Appellant unless the Respondent has had sufficient opportunity of contesting the case on that ground”.

(16) Rule 8(9) of C.I.17 is almost in tandem with Rule 6(7)(b) of the Supreme Court Rules, 1996 (C.I.16). The Supreme speaking through Dr. Date-Bah JSC in ATTORNEY GENERAL VRS. FAROE ATLANTIC CO. LTD. [2005-2006] SC GLR 271 at 301 held thus:

 “In any case, the Supreme Court of course, has power under Rule 6(7)(b) of the Supreme Court Rules, 1996 (C.I.16), to consider matters not raised specifically in a ground of appeal”.

Georgina Wood JSC (as she then was) at page 308 of the report in the case supra added that:

 “In any event, in deciding this appeal, we are not to limit ourselves to the grounds set forth by the Defendant/ Appellant. The rules do permit us to rest our decision on grounds not set forth in the notice of appeal provided we afford the parties reasonable opportunity to be heard on the ground”.

(17) In our view and strengthened by the decision of the apex court of this land, we are of the view that since the substitute Plaintiff has been given opportunity to respond which he has done to the legal objection raised challenging his capacity no substantial miscarriage of justice has been caused to him thereby which would have barred our decision to consider the Appellant’s objection raised in such manner.

(18) We will now turn to the crucial issue of capacity of the substitute Plaintiff on which this legal objection is hinged. The general principle as enunciated in authorities in customary law and practice relating to family property is that it is the head of family who is the proper person to sue for the recovery of family property. But of course, to this principle there are exceptions. The first is the leading case of KWAN VRS. NYIENI [1959]  GLR 67.

See also: DOTWAAH VRS. AFRIYIE [1965] GLR 257; AKRONG VRS. BULLEY [1965] GLR 469, SC.

(19) In the instant case the substitute Plaintiff, in his affidavit in support of the ex-parte application in paragraphs 2, 3 and 4 deposed as follows at page 162 of the record of appeal;

“2. That I am the head of family of the Abradze royal family of Bompieso.

3. That Ekwow Essuman the original Plaintiff died on 2^nd October, 2017.

4. That, my Abradze Royal Family which is the Stool family of Bompieso, and to which the original Plaintiff belonged in his life time, has nominated me for purposes of the above entitled suit only, to step in the shoes of the deceased original Plaintiff for purposes of prosecuting the suit”.

(20) Order 44 of C.I.47 is an attempt to streamline the parties who may take part in certain specific causes of Action.

Rule 9 of the Order supra, deals specifically with Representation of Stools and families. Under Rule 9(2) in conformity with the principle of customary law enunciated in respect as to the proper person to sue and be sued in respect of family properties, provides as follows:

“(2) The head of a family in accordance with customary law may sue and be sued on behalf of or as representing the family”.

The question that arises is what is the cause of action in the instant appeal?

A critical look at the reliefs endorsed on the writ and the statement of claim clearly show that it is a monetary claims arising out of an alleged agreement between the Plaintiff and Defendant. It is further clear that the cause of action is personal to the deceased Plaintiff and it survives him. The action has no family character whatsoever attached to it.

(21) We agree with all the submissions of the Defendant’s counsel in respect to the interpretation to be placed on Order 4 Rule 14(1) of C.I.47 but in the instant case, there was no indication of the rule of procedure under which the Motion Ex-Parte was brought.

However counsel for the Plaintiff claims the application for substitution was made ex-parte under Order 4 Rule 6(3) of C.I.47 which provides that:

6(3) An application for an order under this rule may be made ex-parte”.

(22) Rule 6(1) and (2) of the order supra provide that:

“6. Change of parties by reason of death or bankruptcy.

(1) Where a party dies or becomes bankrupt but the cause of action survives, the action shall not abate by reason of the death or bankruptcy.

(2) Where at any stage of the proceedings the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the court may, for the effective and complete determination of the matters in dispute, order that other person to be substituted for the first-named party”.

(23) As already stated, the fact that the cause of action survives the deceased is not in doubt. The fact that the cause of action is personal to the deceased is also not in doubt as the reliefs and the capacity in which the deceased Plaintiff issued the writ give credence to these fact.

Thus any interest or liability which the deceased Plaintiff had in the action upon his death, formed part of his estate.

(24) Section 1(1) of the Administration of Estates Act, 1961 (Act 63) provides as follows:-

“(1) The movable and immovable property of a deceased person shall devolve on the personal representatives of the deceased person with effect from the date of death”.

(25) “Personal representative” is defined in Section 108 of the Act supra to mean; “the executor,

original or by representation the administrator for the time being, of a deceased person”.

If the deceased died leaving a Will, the Executors of course would be the appropriate persons to apply to be substituted. On the other hand, if the deceased died intestate, then it would be the person with the grant of letters by the Court to administer the estate who would be the appropriate person to be substituted.

(26) In our view, it is to avoid a multiplicity of suits, depletion of the estate to the detriment of the rightful beneficiaries and prevent fraud just to mention a few that Act 63 defines the persons upon whom the movable and immovable property of the deceased must devolve upon the death of a person.

It is our further view, that it is also to avoid “spurious claims by family members” in an attempt to deprive widows and children from succeeding to their husbands properties - See dictum of Dotse JSC in FOSUA & ADU-POKU VRS. ADU-POKU MENSAH supra at page 351 of the report.

(27) It is for these reasons that we tend to agree with counsel for the Defendant that the substitute Plaintiff who describes himself as “head of family” without more lacks the capacity to apply to be substituted in an action which is purely personal with no family character attached to it.

(28) Under the circumstances, we hereby sustain the objection raised by the Defendant and set aside the order of substitution made by the High Court, Sekondi dated 16^th October, 2017 which substituted Nana Asare Bediako for the original Plaintiff, Ekow Essuman (deceased).

(29) Accordingly we hereby stay the determination of the appeal until the proper person is duly appointed and